Companies that use blanket statements and policies in their hiring process make themselves vulnerable to negative brand reputation at best, and a myriad of lawsuits at worst. Blanket policies and statements are meant to exclude applicants from consideration for a position through the use of sweeping generalizations. These statements may violate Title VII of the Civil Rights Act of 1964. In 2012 this lead the EEOC to release guidance policies regarding the use of criminal records when making hiring decisions. It doesn’t render background screening and obtaining an applicants criminal records obsolete, it simply means companies must remain aware of compliance laws and adhere to certain policies to avoid adverse effects.
What’s a Blanket Statement?
Blanket statements and policies refer to generalized hiring processes or statements made specifically to deny employment. A company policy stating “no one with a felony may be employed,” is a blanket statement. If an application asks the applicant if they have ever been convicted of a felony and an affirmative response closes the online application window, or their application is weeded out in any way based on this answer, they have been victimized by a blanket policy. Blanket statements and policies could potentially lead to disparate-impact lawsuits, in which “employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.”
When Can I Refuse to Hire?
As with life, there are exceptions to the rule. The exception to this blanket statement guideline involves the applicant’s history and its relation to the considered open position. If a person convicted of financial fraud applies for a position handling large sums of money, the company has a right to choose not to hire that person based on those findings. It’s risk management for the company at that point. There are three factors that are used to decide whether or not a criminal record may be used to refuse hire. They’re referred to as the Green factors:
- The nature and gravity of the offense or conduct
- The time that has passed since the offense, conduct and/or completion of the sentence
- The nature of the job held or sought
Courts often make the final determination regarding the relation of position to applicant’s history. In 2015 the Hawaii Supreme Court ruled on a case in which a person with a prior drug charge was denied a position as a radiology tech in a hospital. The hospitals argument was that the applicant would have access to medication drugs, thus increasing their liability risks. The applicant was able to prove he wouldn’t be in contact with medications directly, and the judge ruled in favor of the applicant. Tricky situation to be in, but it can be avoided.
How Can I Mitigate Risk?
Change the Language
Language is powerful and with great power comes great responsibility. As you’re crafting policies, statements, and job posters for your company, consider avoiding stigmatizing or inherently negative wording, such as “ex-con” or “ex-felon.” Instead consider using phrases that include the word “people” such as “people with records.” The goal is to use terms that are less abrasive and more accepting. Other phrases to avoid include “must pass background check,” or “clean background only.”
Provide an EEO Statement
This has become a rule for employers over the last 7 years. OnGig put together a list of effective EEO statements and a few tips on crafting a nuanced and compliant statement. On this list, Google goes above and beyond in their statement saying “At Google, we don’t just accept difference – we celebrate it, we support it, and we thrive on it for the benefit of our employees, our products, and our community. Google is proud to be an equal opportunity workplace and is an affirmative action employer.” The California based E&J Gallo Winery keeps theirs on the simple side: “Equal Opportunity Employer,” located on every job they post.
Hire a Lawyer
Having a lawyer review all statements and policies is the best way to mitigate legal risk when writing or changing policies. They can work with you to refine the structure and wording to maintain workplace safety while keeping with EEOC guidelines and discrimination policies.
The use of blanket statements make companies vulnerable to tarnished brand reputation and lawsuits. But by following the guidelines set forth by the EEOC, and incorporating inclusive, well-written EEO statements, policies, and practices your company can stay compliant and mitigate risk.
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Critical Research is committed to providing educational information for our clients and readers. We are here not only to service your background screening needs, but to educate on important hiring practices and policies. Please contact us for more information on how we can help keep you compliant and handle your background check program.